Blog by Cassandra Beaulac and Arun S. Maini
What is “Direct Accountability”? What is “Diversion”?
Diversion, sometimes referred to as “Direct Accountability”, is a means by which a defendant in a criminal case can have his or her charge removed from the stream of a criminal prosecution.
In return for completing a diversion program, the Crown will withdraw the criminal charge against you.
What does a diversion program involve?
Diversion usually involves the client completing one or more of the following steps or programs:
- Community Service, such as volunteering time to work at a homeless shelter
- Addiction and/ or mental health counselling and programming
- Anger management and other related behavioural counselling programming
- Making a charitable donation
Why would I be offered diversion or Direct Accountability?
The government recognizes that because criminal cases take up time and limited court resources, it is sometimes not in the best interest of the administration of justice to have minor charges dealt with by way of a full-blown prosecution.
When can the Crown offer diversion or direct accountability?
In cases where the defendant has no criminal record; the offence is relatively minor; and little actual harm has been done to a person or to the community, the Crown might decide that diversion is a better way to encourage the defendant to acknowledge his misconduct and make amends than to prosecute his case further in court. Some examples of cases where diversion or Direct Accountability are common are small thefts or frauds (such as shoplifting), minor damage to property, even minor assaults where no injury has been caused.
Some offences cannot be diverted, such as sexual offences, more serious assaults, large-scale thefts, and DUIs. The Crown will examine the nature and seriousness of the offence; the degree of harm caused, and the impact of that harm on the community or the victim; and will weigh the pros and cons of prosecuting versus diverting the charge.
How can I find out if I qualify for diversion or Direct Accountability?
When the brief of evidence is prepared by the Crown for disclosure to the defence, they will usually take an initial position on the seriousness of the offence and the outcome that the Crown considers would be in the public interest. This position is written down on what is called the “Charge Screening Form”. When you (or your lawyer) receive the disclosure brief of evidence, usually at the first court appearance, check the Charge Screening Form. If you are eligible for diversion or Direct Accountability, it will be indicated there.
In some cases, the Crown is not initially agreeable with diversion as a means to resolve the case. Your lawyer will have to try to negotiate for diversion or direct accountability on your behalf if you are eligible.
What is the Youth Justice Committee?
The “Youth Justice Committee”, or “YJC” is a form of diversion offered to youths. It will be explained in our next blog. You can access it here.
Do I need to plead guilty to be offered diversion? Will I end up with a criminal record?
No. If you are offered a diversion program and successfully complete it, your charge will be withdrawn without the need to plead guilty to the offence.
You will, however, be expected to acknowledge your role in the incident, because diversion or Direct Accountability is all about having you recognize that you made a mistake, and to be prepared to make amends for that misconduct. In return for doing so, you will not be asked to admit to the offence in court or plead guilty to it: your acknowledgement is usually taken in writing in the diversion office. That document cannot be used against you later in court: it is simply a step in the diversion process.
Can I get my fingerprints and mugshot destroyed after my case is diverted?
Yes. But some police departments have a waiting period for cases that are diverted. A special case involves minors: youths must wait two years for their youth record to be sealed if their case has been diverted. Ask your lawyer or duty counsel about that; or talk to the diversion worker.
I am innocent. Can I refuse diversion?
Of course. You cannot be forced to acknowledge your involvement and participate in diversion. If you refuse an offer of diversion or Direct Accountability, the Crown will continue to prosecute your case.
However, it is always in your best interest to review this decision carefully with your lawyer, or with duty counsel if you do not have a lawyer. Choosing to defend the prosecution rather than accept diversion has risks, and you need to make and informed decision before accepting or refusing diversion.
How does Direct Accountability work? How long does diversion take?
If you are offered diversion or Direct Accountability by the Crown, you will meet with a worker at the Diversion or Direct Accountability office at the courthouse. The diversion worker will explain the process and have you sign an acknowledgement of responsibility as the first step towards completing the program.
During that intake meeting, the diversion coordinator will decide what steps you will need to undertake to successfully complete the program. Your court date will then be postponed long enough for you to do this.
Once you have completed the diversion program to the satisfaction of the diversion coordinator, s/he will sign off on a completion letter to the Crown, and your charge will then be withdrawn in court.
If you choose not to enroll in the program, or fail to complete it, your case will be placed back in the regular stream for criminal prosecution.
For most people, a diversion is an excellent option that benefits all parties. For the defendant, it is less costly, less time-consuming, and less risky than a trial. The Crown and Court save precious court resources, and the community benefits from your acknowledgement and amends. If only more such alternatives to criminal prosecution were available!
If you have been offered diversion, or are facing criminal charges and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830.
Cassandra Beaulacis a recent graduate of the University of Windsor Law School
Arun S. Maini is a criminal lawyer and former prosecutor with over 20 years of experience.